Quinlan v. Five-Town Health Alliance, Inc.

• Decision Date: 18 May 2018
• Docket Number: No. 2017-103,No. 2017-102,2017-102,2017-103
• Parties: Michael Quinlan, Executor of the Estate of Lincy Sullivan v. Five-Town Health Alliance, Inc., d/b/a Mountain Health Center and Sean May, PA-C
• Court: Vermont Supreme Court

2018 VT 53

Michael Quinlan, Executor of the Estate of Lincy Sullivan v. Five-Town Health Alliance, Inc., d/b/a Mountain Health Center and Sean May, PA-C

No. 2017-102

No. 2017-103

Supreme Court of Vermont

October Term, 2017

May 18, 2018

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Addison Unit, Civil Division

Samuel Hoar, Jr., J.

Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Plaintiff-Appellant.

Ian P. Carleton and Kevin A. Lumpkin of Sheehey Furlong & Behm P.C., Burlington, for Defendants-Appellees.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. SKOGLUND, J. This is a consolidated appeal involving two successive malpractice actions brought by the executor of a decedent's estate against the clinic where the decedent received treatment prior to her death and against the physician assistant who treated her. The trial court dismissed the first action because plaintiff failed to file the certificate of merit required by 12 V.S.A. § 1042 with his complaint, and dismissed the second action as untimely. We conclude that the trial court properly dismissed both cases and therefore affirm.

¶ 2. Plaintiff Michael Quinlan alleged the following facts in his complaint. On October 21, 2014, plaintiff's wife Lincy Sullivan met with physician assistant (P.A.) Sean May at Mountain Health Center in Bristol, Vermont. She informed May that she was experiencing shortness of breath, leg pain, and chest pain. May concluded that Sullivan had allergies, prescribed an inhaler, and told Sullivan she could return home. Sullivan died from a pulmonary embolism on October 24, 2014.

¶ 3. Plaintiff subsequently retained an attorney to bring a medical malpractice claim against defendants. In July 2016, plaintiff's attorney consulted with a P.A. regarding plaintiff's claim. A few weeks later, plaintiff notified Mountain Health of the professional malpractice claim and asked it to refer the matter to its insurer. Plaintiff provided defendant's counsel with copies of Sullivan's medical records and a letter from the consulting P.A. opining that Mountain Health breached the standard of care for P.A.s in several ways, directly contributing to Sullivan's death.

¶ 4. On October 5, 2016, plaintiff, acting in his capacity as executor of Sullivan's estate, filed a wrongful death action against May and Mountain Health Center (Quinlan I). Service was complete on October 21, 2016. The two-year statute of limitations period established by 14 V.S.A. § 1492(a) for wrongful death actions expired on October 25.

¶ 5. On November 1, 2016, defendants moved to dismiss the action because plaintiff had failed to file a certificate of merit with his complaint as required by 12 V.S.A. § 1042. Section 1042 mandates that in all medical malpractice actions for personal injury or wrongful death occurring on or after February 1, 2013, the attorney or party filing the action must "file[] a certificate of merit simultaneously with the filing of the complaint." 12 V.S.A. § 1042(a). The attorney or plaintiff must certify that he or she has consulted with a qualified expert who, based on reasonably available information, has described the applicable standard of care and indicated that there is "a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet that standard of care," thereby causing the plaintiff's injury. Id. § 1042(a)(2). Section 1042(e) provides that "[t]he failure to file the certificate of merit as required by this section shall be grounds for dismissal of the action without prejudice, except in the rare instances in which a court determines that expert testimony is not required to establish a case for medical malpractice." Id. § 1042(e). The statute contains a tolling provision to allow plaintiffs whose claims are about to expire to obtain the requisite expert opinion: "Upon petition to the clerk of the court where thecivil action will be filed, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section." Id. § 1042(d).

¶ 6. Plaintiff responded to defendants' motion to dismiss by filing a separate action with a certificate of merit on November 16, 2016 (Quinlan II), along with a petition for an extension of the statute of limitations under 12 V.S.A. § 1042(d). Plaintiff also opposed defendants' motion to dismiss in Quinlan I, arguing that dismissal under § 1042(e) was discretionary and would be inequitable in his case because he had complied with the substance of the rule by providing notice of his claim and the consulting P.A.'s report to defendants prior to filing suit.

¶ 7. In January 2017, the court granted defendants' motion to dismiss Quinlan I. It noted that the statute of limitations had run but declined to rule whether Quinlan II was timely filed. Plaintiff moved for reconsideration of the dismissal of Quinlan I. Meanwhile, defendants moved to dismiss Quinlan II as time-barred. The court stayed the motion for reconsideration in Quinlan I pending the outcome of the motion to dismiss in Quinlan II.

¶ 8. In his opposition to defendant's motion to dismiss Quinlan II, plaintiff argued that because he had filed an extension request under § 1042(d) within ninety days after the limitations period expired on October 25, 2016, the limitations period should be deemed to have been extended for those ninety days, thereby making his complaint and certificate of merit in Quinlan II timely.¹ He also argued that dismissal would violate his right to equal protection under the Vermont and United States Constitutions and that the statute of limitations was otherwise tolled by 12 V.S.A. § 558.

¶ 9. On March 8, 2017, the trial court dismissed Quinlan II with prejudice, finding that it was time-barred. The court rejected plaintiff's equal protection and tolling arguments. It alsodenied plaintiff's motion for reconsideration in Quinlan I. Plaintiff appealed both decisions. At plaintiff's request, the appeals were consolidated for our review.

¶ 10. Plaintiff's primary argument on appeal is that this Court should use its equitable powers to reverse the dismissal of Quinlan I because he substantially complied with 12 V.S.A. § 1042(a) by obtaining an expert opinion describing the breach of the standard of care and providing it to defendants prior to filing suit. We conclude that plaintiff's proposed approach conflicts with Vermont law and the legislative intent behind § 1042, and agree with the trial court that dismissal of Quinlan I was required under our recent decision in McClellan v. Haddock, 2017 VT 13, ___Vt.___, 166 A.3d 579.

¶ 11. In McClellan, the administrator of a decedent's estate filed a wrongful death action against the decedent's physician and the physician's employer three days before the limitations period expired. The defendants moved to dismiss the action because the plaintiff did not file a certificate of merit with her complaint. The plaintiff argued that her complaint incorporated the certificate of merit requirements because she alleged that the defendants had breached professional standards of care, her attorney had signed the complaint, and her attorney had already provided defendant's counsel with a copy of her expert's preliminary opinion. The plaintiff also moved to amend her complaint to add a certificate of merit. The trial court denied the motion to amend and dismissed the complaint with prejudice because the statute of limitations had expired.

¶ 12. On appeal, we held that the trial court properly denied the plaintiff's motion to amend her complaint to add a certificate of merit, reasoning that "such an amendment would be fundamentally inconsistent with the statutory purpose" of 12 V.S.A. § 1042. McClellan, 2017 VT 13, ¶ 16. We examined the language of the statute and the legislative history and determined that the purpose of the certificate of merit statute was "to ensure that claims against health care providers had been adequately investigated and determined to have merit by a qualified expert before they were filed." Id. ¶¶ 17, 20 (emphasis added). We explained that the "[p]laintiff's 'file first, review later, and amend as necessary' argument utterly defeats that purpose." Id. ¶ 20.

¶ 13. We also rejected the plaintiff's argument that the trial court had discretion not to dismiss the case under 12 V.S.A. § 1042(e):

While the phrase "grounds for dismissal" does suggest that dismissal is not required in every case where the certificate of merit does not comport with the requirements of the statute, we do not read it to authorize a later-filed amendment to supply a certificate of merit otherwise entirely omitted from the original complaint. As discussed, the overarching purpose of the statute is to protect defendants from the burden of defending medical malpractice claims lacking in expert support. Dismissal of a complaint filed without the requisite certificate of merit attesting to such support is essential to effectuate that purpose.

Id. ¶ 25.

¶ 14. Finally, we rejected the plaintiff's argument that the trial court should have treated her motion to amend as the equivalent of a request for a ninety-day extension of the statute of limitations under § 1042(d). We held that "the phrase 'where the civil action will be filed' plainly requires that an extension request precede the filing of the complaint." Id. ¶ 27. Further, "even if § 1042(d) could be construed to authorize an extension request after the filing of a complaint, the trial court here could not have granted a ninety-day...